NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

In re the Matter of:

BRITTANY GALLO, Petitioner/Appellant-Cross Appellee,

v.

T.J. GALLO, Respondent/Appellee-Cross Appellant.

No. 1 CA-CV 20-0642 FC

Appeal from the Superior Court in Maricopa County

No. FC2018-051534

The Honorable Dawn M. Bergin, Judge (Retired)

AFFIRMED

COUNSEL

The Cavanagh Law Firm, P.A., Phoenix

By Christina S. Hamilton

Counsel for Petitioner/Appellant-Cross Appellee

Berkshire Law Office, PLLC, Tempe

By Keith Berkshire, Erica Leavitt

Counsel for Respondent/Appellee-Cross Appellant

FILED 11-16-2021
GALLO v. GALLO

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge D. Steven Williams delivered the decision of the Court, in 

which Judge David B. Gass and Judge James B. Morse Jr. joined.

W I L L I A M S, Judge:

¶1 Brittany Gallo (“Mother”) appeals the superior court’s equal 

parenting time, child support, and debt division orders. TJ Gallo (“Father”) 

cross appeals the superior court’s child support order. For the following 

reasons, we affirm all orders.

FACTUAL AND PROCEDURAL HISTORY

¶2 Mother and Father married in 2012 and have two minor 

children together. In 2018, Mother petitioned for divorce, requesting joint 

legal decision-making authority and equitable parenting time with her

designated as the primary custodial parent. After agreeing to participate in 

the collaborative law process under Arizona Rule of Family Law Procedure 

(“Rule”) 67.1, the parties entered into two Rule 69 agreements. In the first,

the parties agreed to joint legal decision-making authority of the children 

and a parenting time schedule with Father having the children every other 

Wednesday overnight, as well as every other weekend Friday through

Sunday overnight. The second agreement mainly dealt with finances and 

safety for the children, including an agreement to share equal responsibility

for “the outstanding community debt owed to Mother’s parents[].”

¶3 In late 2018, Mother obtained an order of protection against 

Father but withdrew it once Father challenged the order. The following 

month, Mother opted out of the collaborative law process and moved for a

pre-decree temporary order without notice requesting sole legal decisionmaking authority and custody based upon an incident that occurred during 

the parties’ parenting time exchange. The superior court initially granted 

Mother’s motion, but after holding an evidentiary hearing, vacated the 

temporary order and instead ordered Father have a supervised visit to 

allow him to apologize to the children for the incident and then parenting

time would revert to the parties’ previously agreed to schedule.

¶4 Mother later moved for Father’s parenting time to be

supervised based upon concerns of Father’s excessive use of prescription 

pain medications. The superior court denied Mother’s motion but ordered 
GALLO v. GALLO

Decision of the Court

3

an expert in pain medication management to examine Father. Mother filed 

a similar motion the following month, alleging Father left the children in a 

running car in a doctor’s office parking lot. Because of the incident, Mother 

sought, and obtained, an order of protection against Father for her and the 

children. Following a resolution management conference, the superior 

court accepted the parties’ agreement and ordered that, in exchange for 

removing the children from the amended protective order, Father was 

precluded from driving with them and would have up to twelve hours of 

parenting time per week that had to be either supervised or in a public 

place.

¶5 After the court-appointed pain medication management 

expert issued a report, Father moved for unsupervised and equal parenting 

time. Following an evidentiary hearing, the superior court issued an order 

lifting the driving restrictions, awarding Father unsupervised parenting 

time, and issuing other orders related to Father’s use of pain medications

while with the children. Months later, the superior court again increased

Father’s parenting time to every Wednesday evening and every other 

weekend.

¶6 The parties subsequently filed a joint pretrial statement, and 

the superior court held a two-day dissolution trial. At trial, Mother’s 

accounting expert estimated Father’s income exceeded $200,000 annually

based, in part, upon Father’s reported expenses in his affidavit of financial 

information and the expert’s projections for Father’s rental income. Father 

disagreed with the expert’s future projected earnings from the vacation 

rental home, and stated he had financed his expenses using “every last 

penny of his lifetime savings,” and that his assets and savings [were] 

entirely extinguished.” Father acknowledged he had some income from his 

rental property, but asked the court to calculate his income at $50,000. 

¶7 After trial, the court reviewed the best interests of the children

factors enumerated in A.R.S. § 25-403 and found both parents had a close 

relationship with the children in the past and expected that to be the same 

in the future. The court found Father “did not use the best judgment” and 

“behaved inappropriately” at times, but it also found Mother “engaged in 

a relentless campaign to undermine Father’s relationship with the children 

and to convince [the court] to limit his parenting time.” The court found 

Mother damaged her credibility with her “exaggerations and distortions.”

¶8 The superior court further found that, though the rebuttable 

presumption against awarding Father legal decision-making authority 

under A.R.S. § 25-403.04 existed because of Father’s past excessive use of 
GALLO v. GALLO

Decision of the Court

4

pain medications, Father rebutted that presumption where his physician 

imposed hard refill dates and by taking a variety of other steps. Regarding 

debt division, the court found insufficient evidence established the funds 

provided by Mother’s parents constituted a loan rather than a gift.

¶9 Based upon its findings, the superior court awarded the 

parties joint legal decision-making authority of the children, with Mother 

having final authority subject to specific limitations, and equal parenting 

time. The court also ordered Father to pay Mother $1,077 per month in child 

support.

¶10 Mother timely appealed, and Father timely cross-appealed. 

We have jurisdiction under Article 6, Section 9, of the Arizona Constitution 

and A.R.S. § 12-2101(A)(1).

DISCUSSION

¶11 Mother challenges the superior court’s parenting time, debt 

division, and child support orders, arguing the court erred in not enforcing

both Rule 69 agreements and in calculating Father’s income. Father crossappeals the child support orders, arguing the court erred when, solely 

based on Mother’s testimony, it included in the child support worksheet

$581 per month in insurance costs and $700 per month in childcare costs.

¶12 We review the superior court’s parenting time and child 

support orders for an abuse of discretion. Engstrom v. McCarthy, 243 Ariz. 

469, 471, ¶ 4 (App. 2018) (parenting time orders); In re Marriage of Robinson, 

201 Ariz. 328, 331, ¶ 5 (App. 2001) (child support orders). An abuse of 

discretion occurs either when the court commits an error of law in reaching 

a discretionary decision or when the record does not support the court’s 

decision. Engstrom, 243 Ariz. at 471, ¶ 4. “We accept the [superior] court’s 

findings of fact unless they are clearly erroneous but review conclusions of 

law and the interpretation of statutes de novo,” DeLuna v. Petitto, 247 Ariz. 

420, 423, ¶ 9 (App. 2019), including Rule 69 agreements and the Arizona 

Child Support Guidelines, A.R.S. § 25-320 app. (“Guidelines”), McNutt v. 

McNutt, 203 Ariz. 28, 31, ¶ 10 (App. 2002) (applying “the same rules of 

construction in interpreting the Guidelines that we use in construing 

statutes”).

I. Rule 69 Agreements

¶13 Mother contends the superior court approved and adopted 

the first Rule 69 agreement as an enforceable order before trial and,

consequently, the agreement was binding on the court regarding parenting 
GALLO v. GALLO

Decision of the Court

5

time. Father argues the court’s issuance of multiple orders modifying the 

first Rule 69 agreement’s terms at the parties’ requests voided it and, 

regardless, the court “still had an obligation, pursuant to A.R.S. §§ 25-317 

and -403 to ensure that the parenting time plan was in the children’s best 

interest.” Father also argues the court was within its discretion to find there 

was insufficient evidence to prove the money Mother alleged was

community debt owed to Mother’s parents because the debt amount and

repayment terms were vague under the second Rule 69 agreement.

¶14 A.R.S. § 25-317(A) provides that “parties may enter into a 

written separation agreement containing provisions for disposition of . . . 

support, custody and parenting time of their children.” “An agreement

between the parties is valid and binding on the parties,” but “is not binding 

on the court until it is submitted to and approved by the court as provided 

by law.” Ariz. R. Fam. Law P. (“ARFLP”) 69. “[The] court has discretion to 

reject a Rule 69 agreement if it is not ‘reasonable’ as to custody and 

parenting time.” Engstrom, 243 Ariz. at 472, ¶ 8 (quoting A.R.S. § 25-317(D)).

However, if the court finds that the agreement is “reasonable as to support, 

custody and parenting time of [the] children, the [Rule 69] agreement shall 

be set forth or incorporated by reference in the decree of dissolution.” A.R.S. 

§ 25-317(D). Regarding other terms of a Rule 69 agreement, the court must 

apply general contract principles as to the agreement’s construction and 

enforcement. Emmons v. Superior Ct., 192 Ariz. 509, 512, ¶ 14 (App. 1998).

a. Parenting Time

¶15 Here, as part of the collaborative law process, the parties

entered into a Rule 69 agreement that contained parenting time provisions.

The parties were at the time bound by this agreement under Rule 69(B). 

However, until the superior court approved the agreement as an 

enforceable order, it retained authority to exercise its independent 

discretion regarding parenting time orders pursuant to A.R.S. § 25-317. See

ARFLP 69(B) (“An agreement under this rule is not binding on the court 

until it is submitted to and approved by the court as provided by law.”); cf.

Engstrom, 243 Ariz. at 472, ¶ 9 (providing the court no longer retained its 

authority where it had previously approved the parties’ Rule 69 agreement 

as an enforceable order).

¶16 The superior court issued its first temporary custody and 

parenting time order when it granted Mother’s motion (without notice) for 

sole legal decision-making and physical custody of the children and no 

parenting time for Father. Following an evidentiary hearing, the court 

vacated its temporary ruling and instead ordered a supervised visit for 
GALLO v. GALLO

Decision of the Court

6

Father to apologize to the children and, barring another request to modify 

parenting time, the parties would revert back to their Rule 69 agreement. 

Mother argues under Engstrom the court’s order for a return to parenting 

time under the Rule 69 agreement indicates the court’s acceptance of the 

Rule 69 agreement. But Engstrom is distinguishable. In Engstrom, the court 

made an express finding at a resolution management conference that the 

Rule 69 agreement was “fair and equitable,” and “in the best interest of the 

parties’ minor children.” 243 Ariz. at 471, ¶ 6. The court there also approved 

the agreement “as an enforceable order of th[e] Court.” Id. (alteration in 

original). No such express finding or order was made here. Rather, without 

addressing the merits of the Rule 69 agreement, including whether its terms 

were in the best interests of the children, the court simply indicated that 

parenting time would revert, temporarily, to the schedule the parties had 

previously agreed upon. We cannot say the court’s actions here indicated 

its intent to accept the agreement as an enforceable order of the court. 

¶17 Because the court retained its authority to exercise its 

independent discretion pursuant to A.R.S. § 25-317, we reject Mother’s 

argument that the court erred when it failed to enforce the parenting time 

schedule under the Rule 69 agreement. See ARFLP 69.

b. Debt Division

¶18 Similarly, Mother argues the superior court erred when it 

failed to enforce the second Rule 69 agreement. The record shows the 

parties entered into a second Rule 69 agreement in which they agreed to be 

equally responsible for debt owed to Mother’s parents. In its decree, the 

court found the parties’ Rule 69 agreement was “no longer applicable” 

because the collaborative law process ended. For debt division, the court 

found there was “insufficient [evidence presented at trial] to establish that 

the funds provided by Mother’s parents to Mother and Father during their 

marriage constituted a loan, rather than a gift.”

¶19 Though we disagree with the superior court’s assertion that 

the second Rule 69 agreement was no longer applicable once the 

collaborative law process ended, the court committed no error in failing to 

enforce the debt provision because its terms relating to debt owed to 

Mother’s parents were vague and disputed. While Mother testified her 

parents provided her and Father with a $160,000 loan, Father argued no

such debt existed, instead any monies received from Mother’s parents 

constituted a gift. On this issue, the court made a credibility determination 

based upon the conflicting evidence and ultimately found the evidence 

wanting. Mother has shown no error in the court’s debt division order.
GALLO v. GALLO

Decision of the Court

7

II. Child Support

¶20 Mother and Father both argue insufficient evidence supports 

various parts of the superior court’s child support orders. Mother contends 

that the court erred in determining Father’s income for child support 

purposes, arguing no evidence supported the court’s finding that Father’s 

income was $77,160 per year. Father challenges the superior court’s 

inclusion of Mother’s payment of $581 per month in insurance costs and 

$700 per month in childcare costs in the child support worksheet, arguing

no evidence supported such costs.

¶21 “Arizona has adopted the Arizona Child Support Guidelines 

for, among other things, the purpose of establishing a standard of support 

for children consistent with their needs and the ability of parents to pay, 

and to make child support awards consistent for persons in similar 

circumstances.” Cummings v. Cummings, 182 Ariz. 383, 385 (App. 1994) 

(citing Guidelines § 1). In determining a child support award, the superior 

court considers the parents’ gross income, which includes income from any 

source. Guidelines § 5(A). “[G]ross income for child support purposes is not 

determined by the gross income shown on the parties’ income tax returns, 

but rather on the actual money or cash-like benefits received by the 

household which is available for expenditures.” Sherman v. Sherman, 241 

Ariz. 110, 113, ¶ 14 (App. 2016) (quoting Cummings, 182 Ariz. at 385).

¶22 Mother claimed her current income was $42,000 per year and

she spends $581.12 per month on the children’s medical insurance and $700 

per month on childcare costs. Father claimed to be unemployed but 

acknowledged he recently began earning an income from renting out his 

home; Father estimated his 2020 income at that point to be $13,000. As noted 

supra ¶ 6, Mother’s accounting expert estimated Father’s annual income

exceeded $200,000. In its decree, the court found problems with the 

calculations provided by Mother’s expert because the figures did not 

account for vacation rental cancellations, fees, lodging costs, and 

differences in seasonal rates. The court noted its difficulty in accepting 

either parties’ position regarding Father’s income. The court ultimately

calculated Father’s annual income as $77,160 after adding $61,728 for eight 

months of rental fees it categorized as the busy months plus $15,432 for the 

remaining four months it categorized as the slow months. The court has 

broad discretion in determining income and reached a number somewhere 

between Father’s position and Mother’s. See Cummings, 182 Ariz. at 385; 

Sherman, 241 Ariz. at 114, ¶ 14 (providing the Guidelines do not “expressly 

define ‘income,’ and the question to what extent ‘income’ may include loan 
GALLO v. GALLO

Decision of the Court

8

proceeds is an open one in Arizona”). The court also explained its reasoning 

for its findings. Reasonable evidence supports the court’s finding.

¶23 As to Father’s cross-appeal and assertion that the superior 

court’s inclusion of $581 per month in insurance costs and $700 per month 

in childcare costs in the child support worksheet is not supported by the 

record, we disagree. Mother testified as to both costs and Father offered no 

testimony to the contrary. Record evidence supports the court’s findings.

CONCLUSION

¶24 For the foregoing reasons, we affirm the superior court’s 

parenting time, debt division, and child support orders. In the exercise of 

our discretion, we deny both parties’ requests for costs, as well as attorney’s

fees pursuant to A.R.S. § 25-324.